204 Ky. 151 | Ky. Ct. App. | 1924
Opinion op the Court by
Affirming.
Ernest E. Beid, a resident of Clinton, Hickman county, Kentucky, who was unmarried and childless, died .March 25,1917, at Conway, South Carolina, where he had gone hoping to benefit his health. By a will which ap
The rule is well settled that a new trial will not be granted for newly discovered evidence unless it is so convincing as most likely to produce a different result or, as the rule is sometimes expressed, “unless the evidence be of such decisive character as to render a different result reasonably certain.” Hartsfield v. Pace, 189 Ky. 93; George v. Sohn, 191 Ky. 428; Benge v. Markham, 194 Ky. 121; Bradley v. Gearhart, 194 Ky. 399.
The courts do not favor newly discovered evidence as a ground for new trial, because it offers big opportunities for perpetration of fraud. The application for a new trial is addressed to the discretion of the circuit judge, and his discretion will not be controlled, unless abused. Isgrig v. Jacoby, 199 Ky. 744.
Under the rule laid down above, the judgment of the chancellor refusing a new trial cannot be disturbed. The evidence is jDersuasive that the testator was incompetent to make a will in the year 1914, and that he was not in Arkansas at the time at which the witnesses testified he was there and executed a paper which, according to another witness, he destroyed at Clinton, Kentucky, in August, 1915, and the proof is convincing that he was not in Clinton in August, 1915, and that he was not for some years before his death capacitated to make a. will. Judgment affirmed.